a period from all the uses and purposes of social life, was intolerable." §3. The Right to Make a Will. The right to make a will is not a property right but purely a statutory right,-not subject to the constitutional restrictions for the protection of property. Therefore, it is apparent that the power to make wills, the formalities with which they shall be executed, and their efficiency, depends upon the statute3 and is subject to the legislative control. Thus it is left to the legislature to make such changes, disqualifications and limitations as it may deem proper. Any new requirements as to form of the will, capacity of testator, and so forth, may be altered, changed, or modified at any time before the death of the testator, and there is no constitutional restriction preventing the legislature from making these rules applicable to wills which are already executed. But the legislature cannot by statute interfere with any will where the testator has died before the statute was passed, for it is manifest that upon the death of the testator the property rights become fixed in that the will being found valid the estate or interest becomes a vested property right and in the event that the will is found invalid the vested property right passes to the heirs or next of kin, and not to the testamentary devisee or legatee. The object of the statute of wills is to give a right by which persons can dispose of their property as they see fit and therefore their objects of bounty may be unrestricted, for it is intended 3. Beaubian Mich. 9. V. Cicotte, 8 10 Mich. 346. 4. Bapt. Miss. Union v. Peek, 5. C. L. '97, Chapter 248. that every person should be at liberty to select the object of his bounty among his relatives at discretion, or even to pass them all by if so disposed", and it may be said that the blood relations are the natural objects of his bounty, but such bounty is not limited by blood relationship, for the reason that such relations have no natural or inherent right to his property. The power to devise land is created and governed by statutes while at common law no such power was known. However, the power to bequeath personal property existed at common law, and any statute, therefore, purporting to authorize the testamentary disposition of personal property is merely declamatory of the right which every person has at the common law to dispose of his property by will10. In general the right of a testator to dispose of his property by will extends to all his property, and is available against all persons, except in so far as the law has prescribed claims superior to his power11, and courts cannot inquire into the propriety of any disposition which a testator sees fit to make of his property by a legally executed will so long as it is not unlawful12 Further a testator may empower his trustee to do whatever he could lawfully do himself13. §4. Restrictions on the Right to Make Wills. All the restrictions placed upon the right of disposition are statutory, and they relate mainly to dower11 and to the 6. Fraser v. Jennison, 42 Mich. 206, 3 N. W. 882. 7. Spratt v. Spratt, 76 Mich. 304, 43 N. W. 627. 8. C. L. '97, §9262. 9. C. L. '71, §2828. 10. In re High, 2 Doug. 513. 11. Miller v. Stepper, 32 Mich. 194. 12. Toms v. Williams, 41 Mich. 552, 2 N. W. 814. 13. Toms V. Williams, 41 Mich. 552, 2 N. W. 814. 14. C. L. '97, §8918. rule of perpetuities15. The wife has a dower interest in the realty of her husband as well as a distributive share in his personalty1 from which she cannot be excluded by will, for where a will makes no provision for the widow of a testator her dower right is the same as though he had died intestate17, but the fact that there is in existence an antenuptial contract securing certain property to the wife does not prevent a testator from making such a will as he pleases18. Neither can a testator cut off by will his creditors nor the expenses of administration19, and a mother cannot be deprived of the custody of her child by the appointment of a testamentary guardian20. The conveyance of property by a father to a daughter, the conditions of which have been fully performed, will not be set aside to give effect to a previous will made by the father21. The inquiry now leads to what is a will. §5. Definition of Will. A will may be defined as the legal declaration of the intentions of a person, which he directs to be performed after his death22 or it is the declaration of a person's mind as to the manner in which he or she would have his or her property or estate disposed of after his or her death23. From 15. C. L. '97, §§8797, 8798. 16. C. L. '97, §9300. Before the passage of this act the testator could exclude his wife from sharing in his entire personal estate. Miller v. Stepper, 32 Mich. 194. 17. Burrall v. Bender, 61 Mich. 638. 18. Rice v. Rice, 53 Mich. 432, 19 N. W. 132. 19. Miller v. Stepper, 32 Mich. 194. 20. Goss v. Stone, 63 Mich. 319, 29 N. W. 735. 21. Goff v. Thompson, Har. 69. 22. Byrne v. Hume, 84 Mich. 185, 47 N. W. 679. 23. Appeal of Jameson, 1 Mich. 99. these definitions it follows that it is the duty of the court to give full and complete effect to the intentions of the testator24. §6. Codicil. The word "will" by statute shall be construed to include codicils as well as wills. In modern law a codicil may be looked upon as a sort of postscript to the will. §7. Testament. It may be said that a will is usually regarded as including a testament, "for when the will operates upon personal property, it is sometimes called a testament, and when upon real estate, a devise; but the more general and the more popular denomination of the instrument, embracing equally real and personal estate, is that of last will and testament"28. §8. Different Kinds of Wills-Mutual and Joint Wills. Wills or testaments are divided into written and unwritten. A nuncupative will is an unwritten one in which a testator declares or makes a solemn declaration of his will in extremis in presence of a sufficient number of witnesses, but a declaration by a husband on his death bed to his wife that, if she pays off the mortgage on his farm and supports the family, the land will be hers, cannot, even after full performance by her, be supported as a valid nuncupative will, for the reason that the declaration was a mere conversa 24. Byrne v. Hume, 84 Mich. 185, 47 N. W. 679. 25. C. L '97, §50, subd. 16. 26. Kent's Comm., Bk. IV. tion and no disposition was intended. Through the adoption of the civil law in some jurisdictions the mystic and holographic testament have found their way in our law. A mystic testament is where one encloses his instrument of disposition in an envelope and seals it in presence of witnesses. A holographic or olographic testament is one written wholly by the testator himself. A mutual will may be defined as the execution of two separate wills by testators, in which they manifest their common intention, while a joint will is one in which the common intention is expressed in one will, signed and executed by both testators.* It may be said that as a general rule mutual and joint wills are valid.** They are subject to the same rules of execution and revocation as other wills. The questions, whether mutual wills form a contract and whether a proponent has by revoking her own will estopped herself from claiming under the other do not come under the jurisdiction of the probate court.† §9. Difference Between Will and Gift. The difference between a will and a gift is that a gift must take effect in præsenti. It is said that a gift of a chattel capable of delivery, made per verba de præsenti by a donor to a donee, and assented to by the donee, whose assent is 27. Campbell v. Campbell, 21 Mich. 438. C. L. '97, §9267. Nothing contained herein shall affect the validity of a nuncupative will, in which the value of the state bequeathed shall not exceed three hundred dollars, provided the same shall be two competent witnesses, nor to prevent any solicitor being in actual mili tary service, nor any mariner, being on shipboard, from disposing of his wages and other personal estate by nuncupative will, as he might heretofore have done. *Edson v. Parsons, 155 N. Y. 555. **In re Diez's will, 50 N. Y. 88. +Lansing v. Haynes, 95 Mich. 16, 54 N. W. 699. |